Truthinadverstisingenforcers.com et al v. My Pillow, Inc.

Filing 7

ORDER: The Clerk is directed to remand this case to the County Court of the Sixth Judicial Circuit in and for Pasco County, Florida. Thereafter, the Clerk shall close the case. Signed by Judge Virginia M. Hernandez Covington on 1/27/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TRUTHINADVERTISINGENFORCERS.COM,
and DIANE HANSEN,
Plaintiffs,
v.

Case No. 8:17-cv-169-T-33AAS

MY PILLOW, INC.,
Defendant.
________________________________/
ORDER
This matter comes before the Court sua sponte. As the
Court lacks subject matter jurisdiction, the Court remands
this case to the Sixth Judicial Circuit in and for Pasco
County, Florida.
I.

Background
Pro se Plaintiffs TruthInAdvertisingEnforcers.com and

Diane Hansen initiated this action in the County Court of the
Sixth Judicial Circuit in and for Pasco County, Florida, on
December 19, 2016, alleging violations of Florida’s false
advertising statute, § 817.41(1), Fla. Stat., and common law
claims for fraud, intentional misrepresentation, negligent
misrepresentation,

false

promise,

negligence. (Doc. # 2).
1

concealment,

and

On January 23, 2017, My Pillow removed the case to this
Court on the basis of federal question jurisdiction. 28 U.S.C.
§ 1331. In the Notice of Removal, My Pillow asserts that the
case “includes a claim arising under the Constitution, laws
or treaties of the United States” by alleging breaches of
three federal statutes, 15 U.S.C. § 45(a), and 18 U.S.C. §§
1341 and 1343. (Doc. # 1 at ¶¶ 4-5).
A close reading of the Complaint reveals, however, that
the Plaintiffs are not bringing any causes of action under
the federal statutes referenced in the Complaint. Rather, the
federal statutes are listed under the Seventh Cause of Action
— a common law negligence claim — as the basis for “several
alternative theories of the duty that Defendant owed to
Plaintiffs.” (Doc. # 2 at 11). Although the Complaint refers
to three federal statutes, this alone is not enough to confer
federal jurisdiction. Thus, the Court must analyze whether it
has jurisdiction over this case.
II.

Limited Jurisdiction of Federal Courts
Federal courts are courts of limited jurisdiction and

are “empowered to hear only those cases within the judicial
power of the United States as defined by Article III of the
Constitution.” Bochese v. Town of Ponce Inlet, 405 F.3d 964,
974 (11th Cir. 1994). “[I]t is well settled that a federal
2

court

is

obligated

to

inquire

into

subject

matter

jurisdiction sua sponte whenever it may be lacking.” Univ. of
S. Ala. V. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999).
Generally, the district courts have jurisdiction over
cases “arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. As stated in Merrell
Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804 (1986),
“the question of whether a claim ‘arises under’ federal law
must

be

determined

by

reference

to

the

well-pleaded

complaint.” Id. at 808. The Supreme Court has explained that
“[u]nder the longstanding well-pleaded complaint rule, . . .
a suit arises under federal law only when the plaintiff’s
statement of his own cause of action shows that it is based
upon federal law.” Vaden v. Discover Bank, 556 U.S. 49, 60
(2009)(internal citations omitted).
Within these parameters, the Supreme Court has clarified
that a cause of action can arise under federal law in one of
three ways. Franchise Tax Bd. v. Constr. Laborers Vacation
Tr., 463 U.S. 1, 8 (1983). First, a federal law may “create
the cause of action.” Id. at 8-9. Second, a cause of action
may

arise

where

“some

substantial,

disputed

question

of

federal law is a necessary element of one of the well-pleaded
3

state claims.” Id. at 13. Third, a cause of action may arise
where “a federal cause of action completely preempts a state
cause of action.” Id. at 24.
Furthermore, in Merrell Dow, 478 U.S. at 817, the Court
explained that a complaint alleging the violation of a federal
statute as an element of a state cause of action does not
necessarily state a claim arising under the laws of the United
States when Congress created no private, federal right of
action for the violation of the federal law. The mere mention
of a federal statute in a complaint does not create federal
question jurisdiction. Hill v. Marston, 13 F.3d 1548, 1550
(11th Cir. 1994).
Here, the Court determines that remand is appropriate
because the Court lacks subject matter jurisdiction over the
case.

28 U.S.C.

§

1447(c)(“If at any time before final

judgment it appears that the district court lacks subject
matter

jurisdiction,

the

case

shall

be

remanded.”).

Plaintiffs seek a ruling that My Pillow was negligent in its
advertising by breaching the duties Plaintiffs allege are
created by the three federal statutes cited, 15 U.S.C. §
45(a),

and

18

U.S.C.

§§

1341

and

1343.

Nevertheless,

Plaintiffs’ Complaint does not arise under federal law.

4

There is no private right of action under the referenced
federal statutes, and thus federal question jurisdiction
cannot be established on that basis. See Jairath v. Dyer, 154
F.3d 1280, 1284 (11th Cir. 1998)(“[I]t will be only the
exceptional federal statute that does not provide for a
private

remedy

but

still

raises

a

question

federal

substantial enough to confer federal question jurisdiction
when it is an element of a state cause of action.” (quoting
City of Huntsville v. City of Madison, 24 F.3d 169, 174 (11th
Cir. 1994))); see also Templeton Bd. of Sewer Comm’rs v. Am.
Tissue

Mills

of

Mass.,

352

F.3d

33,

37-38

(1st

Cir.

2003)(“Unless a federal statute bestows a private right of
action, courts ought to presume that Congress did not intend
the

statute

to

confer

federal

jurisdiction.”).

Only

the

Federal Trade Commission can bring a civil action under 15
U.S.C. § 45(a), which is part of the Federal Trade Commission
Act. See Gomez v. Bank of Am. Corp., No. 8:15-cv-324-T-33EAJ,
2015 WL 667664, at *1 (M.D. Fla. Feb. 17, 2015)(dismissing 15
U.S.C. § 45(a) claim because “[t]he Federal Trade Commission
Act does not create a private right of action”)(citing Fulton
v.

Hecht,

580

F.2d

1243,

1248

n.2

(5th

Cir.

1978)).

Furthermore, 18 U.S.C. §§ 1341 and 1343 are criminal mail and
wire fraud statutes that do not create private causes of
5

action. Austin v. Glob. Connection, 303 F. App’x 750, 752
(11th Cir. 2008)(“The federal wire and mail fraud statutes
are

criminal

statutes

which

do

not

provide

for

civil

remedies.”).
Nor does the Complaint implicate a substantial question
of federal law. A question of federal law is substantial if
“the vindication of a right under state law necessarily
turn[s] on some construction of federal law.” Merrell Dow,
478 U.S. at 808-09 (quoting Franchise Tax Bd., 463 U.S. at
9); see also Templeton Bd. of Sewer Comm’rs., 352 F.3d at 38
(noting that even where the federal law invoked does not
create a private right of action, “when the interpretation of
federal

law

is

outcome-determinative,

subject

matter

jurisdiction may be properly exercised”).
Here, Plaintiffs contend that the alleged violation of
these statutes by My Pillow

support

that My Pillow

was

negligent in its advertising. See Lowe v. Gen. Motors Corp.,
624 F.2d 1373, 1379 (5th Cir. 1980)(“[Plaintiffs] made it
quite clear that the only relationship the alleged violation
of the [federal Motor Vehicle Safety Act] had to this [state
wrongful

death]

case

was

simply

as

evidence

of

GM’s

negligence. The concept that violation of a criminal or penal
statute can be evidence of negligence in a civil action is
6

not new to tort law.”). Plaintiffs allege that the federal
statutes create a duty to consumers like themselves. (Doc. #
2 at 11). But Plaintiffs include “several alternate theories
of the duty that [My Pillow] owed to Plaintiffs,” many of
which are based

on state fraud and false or misleading

advertising statutes. (Id.). While an alleged breach of the
federal statutes may support Plaintiffs’ negligence claim
regarding My Pillow’s advertising tactics, the success of
that

claim does not turn on whether My Pillow

actually

violated federal law. Thus, the Complaint does not raise a
substantial federal question. Cf. Austin v. Ameriquest Mortg.
Co., 510 F. Supp. 2d 1218, 1227 (N.D. Ga. 2007)(“[T]he Court
does not find that this case raises a substantial federal
question because plaintiff’s [Georgia] RICO allegations do
not

rest

solely

on

federal

law.

Rather,

plaintiff’s

allegations of violations of Georgia’s theft by deception and
theft by taking statutes could serve as plaintiff’s predicate
acts under Georgia’s RICO statute. Thus, . . . this Court
need

not

determine

whether

defendant

violated

a

federal

law.”). Finally, the three federal statutes do not preempt
state common law negligence claims.
Although

My

Pillow

alleges

only

federal

question

jurisdiction, the Court will nonetheless analyze whether
7

diversity jurisdiction exists. When jurisdiction is premised
upon diversity of citizenship, 28 U.S.C. § 1332(a) requires
complete diversity of citizenship and that “the matter in
controversy exceeds the sum or value of $75,000, exclusive of
interest and costs.” In the Complaint, Plaintiffs allege that
they are citizens of Pasco County, Florida, and that My Pillow
is “a foreign corporation”; however, My Pillow provides no
additional information on its citizenship in the Notice of
Removal. (Doc. # 2 at ¶¶ 5-7). Additionally, Plaintiffs
acknowledge

that,

while

they

ultimately

“intend

to

seek

punitive damages in excess of $15,000,” their compensatory
“damage claims are for less than $15,000” — far below the
amount-in-controversy

requirement.

(Doc.

#

2

at

¶

3).

Therefore, the Court may not hear this case on the basis of
its diversity jurisdiction.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
The Clerk is directed to REMAND this case to the County
Court of the Sixth Judicial Circuit in and for Pasco County,
Florida. Thereafter, the Clerk shall CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this
27th day of January, 2017.

8

9